In Latest Round of Travel Ban Litigation, New Path Seen In D.C. Circuit

A new round of litigation challenging President Donald Trump's latest travel ban is underway in the Fourth and Ninth circuits, but another lawsuit in Washington, D.C., could pave an alternative legal road for the president's opponents.

By Cogan Schneier|October 11, 2017 at 06:41 PM

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A large crowd rallies on the steps of the U.S. Supreme Court, led by top Democrat lawmakers, to denounce President Donald Trump’s executive order banning immigration from seen Muslim-majority countries, on Jan. 30, 2017. ( Diego M. Radzinschi/ALM) ()

A new round of litigation challenging President Donald Trump’s latest travel ban is underway in the Fourth and Ninth circuits, but another lawsuit in Washington, D.C., could pave an alternative legal road for the president’s opponents.

A federal judge in Washington, D.C., heard oral arguments on the now-expired March 6 travel ban executive order back in April but stayed the case after district courts in Maryland and Hawaii enjoined it and the U.S. Supreme Court got involved. The high court dismissed a challenge originating in Maryland as moot Tuesday, since the order expired last month.

It’s likely to do the same with the Hawaii case, and plaintiffs in both lawsuits have already begun the process of challenging Trump’s new travel ban restrictions, issued Sept. 24. The D.C. case was never decided because of the April stay.

The plaintiffs, represented pro bono by a team from Arnold & Porter Kaye Scholer led by partner John Freedman, asked the court this week to reopen their case. They’ve asked District Judge Tanya Chutkan to lift the stay, and, should she agree, Freedman said his team will ask the court to issue a preliminary injunction against the new restrictions.

A federal judge in Washington state blocked the first travel ban in February, prompting Trump to issue the second travel ban. Now in its third iteration, which takes effect Oct. 18, the travel ban targets eight countries, six of which are majority Muslim. The other two are Venezuela and North Korea, though the ban only applies to Venezuelan government officials, and there are few North Korean immigrants.

Opponents to the restrictions argue that, despite the addition of the two countries, the executive order is still pretext for discrimination against Muslims. The government said the policy is the result of a thorough review of each country’s ability to comply with U.S. vetting procedures.

Litigation over the latest ban is likely to take the same path as the previous versions, traveling from district courts up to the Fourth and Ninth circuits and, potentially, back up to the Supreme Court.

The plaintiffs in Maryland and Hawaii have filed amended complaints in the district courts and asked for injunctions against the new restrictions, as have two new lawsuits filed in Maryland. Maryland District Judge Theodore Chuang will hold a hearing Monday on all three requests for preliminary injunctions there; in Hawaii, Judge Derrick Watson has ordered the government to hand over the nonpublic report it used to justify the new restrictions by Saturday.

In D.C., the legal issues in the travel ban may have a chance to work their way up to the D.C. Circuit, largely considered the second-highest court in the land due to the judges’ expertise on government matters.

Freedman said that, while all the travel ban cases involve similar legal theories, he intends to push arguments in D.C. that were not the main focus of courts in the Ninth or Fourth circuits. Those courts mainly upheld injunctions against the ban on the grounds that it violated the First Amendment’s establishment clause and exceeded the president’s authority under the Immigration and Nationality Act (INA).

Should the judge reopen the case, Freedman said his team will instead argue that the ban violates the Fifth Amendment’s equal protection clause and a different section of the INA that bars discrimination based on nationality.

“[The new travel ban] has all the same legal problems,” Freedman said. “Fundamentally though, my approach on this is that what [the government is] proposing to do is set up a separate and unequal system for people of different nationalities. … Because it’s being motivated by discrimination, it violates the equal protection clause.”

In its briefs before the stay, the government argued that, because its national security reason for issuing the second travel ban was “facially legitimate and bona fide,” an equal protection challenge could not stand. As for the president’s authority, the government said the INA “expressly authorize[s] the President to suspend or restrict entry of any class of aliens when in the national interest.”

Freedman hopes Chutkan agrees with his arguments. Indeed, it seemed she might when she issued the stay in April. In that order, Chutkan wrote that, though she would not make a decision, the plaintiffs “were likely to succeed on the merits of their claims.”

Asked if Freedman was concerned the government could evade Supreme Court review by simply issuing another iteration of the ban to moot the old, he said the task at hand was to do right by his clients. Like other cases, the plaintiffs in the D.C. case include both organizations and individuals with family members affected by the travel restrictions.

“The important point is that, if [the new restrictions] are enjoined, then people can live their lives,” he said. “I think that’s the most important thing. If and when this goes into effect, it’s going to have a hugely disruptive impact on our clients and people similarly situated.”

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